JUDGMENT SUMMARIES

The Petitioners (DE and FG) challenged the lawfulness of toilet provision at a primary school operated by the Respondent (West Lothian Council). The court’s decision is that the school’s toilet provision breaches the requirements of the School Premises (General Requirements and Standards) (Scotland) Regulations 1967 and is indirectly discriminatory under the Equality Act 2010. The court awarded expenses to the petitioners.

Background

The petitioners’ daughter, C, started primary 1 in August 2025. She attends school at a building developed through the Scottish Government’s Learning Estate Investment Programme.

There are four main communal toilet areas in the school, with two on each floor of the building. All are made up of a row of toilet cubicles in a mixed-sex area. The cubicles do not contain washing facilities. The sink areas are outside the cubicles. There are also six other rooms across the school with toilets and wash basins in them, which can be used by any pupil.

All cubicles in the four main toilet areas were originally deemed gender neutral. Subsequently, stickers with either female, male or both figures were placed on the doors of individual cubicles. After visiting the toilet, children cross an area where boys and girls both have access to wash their hands.

While C is generally happy at school she finds the toilet provision distressing, particularly due to the presence and behaviour of boys. She has avoided using the toilets during school hours, resulting in physical discomfort and reduced fluid intake. Concerns about unisex toilet areas were also raised by other parents.

The child’s father contacted the school over the toilet situation and received an email response from the headteacher saying the school was compliant with EHRC Interim Guidance and regulations.

In considering re-designating the main toilet areas as exclusively male or female the headteacher outlined concerns about some pupils having to walk further, potential issues about congestion, supervision and capacity, effects on pupils, and going against the design principles of the building.

The court’s decision on the grounds of challenge under the 1967 Regulations and the 2010 Act.

School Premises (General Requirements and Standards) (Scotland) Regulations 1967

The 1967 Regulations contain standards for schools, and include provision about sanitary accommodation.  The court found that “sanitary accommodation” in Regulation 15 comprises not only water closets and urinals, but also wash basins near them.  Because the four main toilets at the school do not provide separate spaces for boys and girls containing both appliances and wash basins, they do not comply with the standards for sanitary accommodation in the 1967 Regulations. The toilet provision also breaches a requirement of the 1967 Regulations that 2/3 of the appliances in the boys’ sanitary accommodation should be urinals.

Equality Act 2010

The court found that the toilet provision was indirectly discriminatory of the petitioners’ daughter, but rejected the petitioners’ challenge based on harassment.

In determining the indirect discrimination challenge under section 19 of the 2010 Act, the court identified the relevant provision, criterion or practice (“PCP”) as the provision of all toilet spaces in the school as unisex.  This PCP applied equally to boys and girls, but the court found that it placed girls at a particular disadvantage. The disadvantage arose from a combination of factors.  There were additional issues for girls having to share toilet areas relating to contamination of hands (due to more frequent wiping as a result of anatomy, and transfers of blood from menstruation), and the general vulnerability of girls having to perform intimate activities in communal areas, giving rise to legitimate considerations of privacy, dignity and health and safety. The court found that C herself was subject to that disadvantage because of her anatomy and vulnerability, as demonstrated by her avoidance of toilets at school and associated distress. The Council had not pleaded justification under section 19(2)(d), and accordingly the indirect discrimination claim succeeded.

The harassment claim under section 26 of the 2010 Act, however, failed. Although allowing mixed-sex use of toilet spaces constituted unwanted conduct related to sex, the court was not satisfied that it reached the statutory threshold of “violating dignity” or creating an “intimidating, hostile, degrading, humiliating or offensive environment”. While C experienced distress, the availability of alternative single-use toilets and the overall circumstances meant that the effects, though real, did not meet the high threshold required under section 26.

Other arguments

The Council resisted the petition on a number of other grounds, which were not accepted by the court.  

The Council first argued that the headteacher’s email about the toilet provision was not amenable to judicial review.  The court observed that the Council had statutory duties and powers under the Education (Scotland) Act 1980 and associated regulations.  Although the Council argued that the challenge should properly have been brought against the Scottish Ministers, the court found that it was being asked to supervise the exercise of the Council’s own statutory duties and powers, and the case was properly subject to the court’s supervisory jurisdiction.

The court also rejected the Council’s arguments that the petition for judicial review was barred by alternative remedies.  Although the claims under the 2010 Act could have been brought in the sheriff court, they were closely connected to the challenge under the 1967 Regulations and could be resolved on the basis of the evidence before the court.  The court also did not accept that the availability of a complaint procedure to the Scottish Ministers under section 70 of the 1980 Act precluded judicial review. That procedure lacked the characteristics of an effective judicial remedy. In any event, special circumstances existed, including the Scottish Ministers’ decision to defer consideration of the Council’s request to disapply part of the 1967 Regulations pending the outcome of the proceedings.

Remedies

The petitioners have been substantially successful in the petition, with all of the orders sought being granted. The court found that expenses should follow that success and be awarded to the petitioners.

The full opinion, published on the Scottish Courts and Tribunals Service website, is the only authoritative document.